After our meeting, Prof. Dr. med Hermann Liebermeister and I remained in touch, and he has since graciously introduced me to several valuable resources within his network. One of those resources was Carsten Dunkel, a plaintiffs’ medical malpractice attorney in Homburg, Saarland.
Until now, my meetings and interviews have been with risk managers, physicians, and policy-makers. It was nice to meet with a fellow litigation attorney to discuss the nuts and bolts of medical malpractice lawsuits in Germany.
Mr. Dunkel provided the following general overview of how medical malpractice cases move through the German court system:
Receiving the Case
Intake and Initial Assessment – A client will consult him after suspecting that he or she was a victim of a medical error. In order to initially assess the case, he first requests the client’s medical records from the relevant healthcare provider. Upon receipt of the records, he reviews the general facts and circumstances surrounding the treatment.
Prescription / Statute of Limitations – He must ensure that the claim is not prescribed. In Germany, the prescriptive period is three years from the time the patient acquires knowledge of the treatment error.
Attorney’s Fees – Most clients have legal insurance to cover legal fees associated with pursuing a medical malpractice lawsuit. In a very small number of cases and only under certain circumstances are attorneys able to enter into a contingency fee arrangement.
Evaluating the Case
Expert Opinions – There are several options for obtaining expert opinions in Germany.
- Private expert opinion
He can choose to hire a private expert to review the medical records and give an opinion regarding whether or not there was a breach of the standard of care that caused injury to the patient. The cost of a private expert ranges from $1000 – $3000.
- Expert Opinion from the Health Insurer
Patients who suspect that they were injured by a medical error may request an expert opinion from their health insurer’s medical service. This process is free for the patient.
- Expert Opinion from the Medical Arbitration Board
This process, which is discussed in more detail here, allows patients to obtain an expert opinion from a panel comprised of a medical expert, a medical consultant, and a retired judge. Similar to the health insurer’s process, the board considers the issues of breach and causation. This process is funded by providers’ insurers and is free for the patient. Requesting an opinion from the medical arbitration board stops prescription from running.
Litigating the Case
Specialized Judges – If the parties are unable to reach a resolution following the issuance of an expert opinion, a lawsuit is filed in the Landgericht (regional court). Specialized judges hear medical malpractice disputes in Germany.
Court’s Expert Opinion – Upon receiving the case, the judge will obtain an expert opinion from an independent expert qualified in the medical specialty involved. The judge will consider expert opinions obtained by the parties, but he or she always obtains a separate expert opinion.
Bias – In terms of bias, judges do not have reputations for favoring one side or another, but some experts develop a reputation. Overall, he thinks the process, which is primarily dependent on the court’s expert opinion, is fair and reliable.
Burden of Proof – Generally, the patient bears the burden of proving negligence, causation, and damages, but the burden of proof shifts in a few scenarios, most notably in cases of gross error. While the judge generally rules in accordance with the expert opinion, he or she may disagree as to whether there is evidence of gross error. If the burden of proof shifts to the healthcare provider, the patient is likely to prevail.
Damages – Damages allowed in medical malpractice cases include pain and suffering, loss earnings, and loss of contribution to the household. Pain and suffering awards are much lower than those in the United States. For example, a paraplegic would receive approximately $500,000 for pain and suffering and someone who lost an eye would receive around $100,000. Loss of contribution to the household is determined by a schedule of damages that varies based upon familial circumstances.
Appeals – Appeals of factual issues are heard in the Oberlandesgericht (higher regional court). Approximately 30% of cases are appealed to the Oberlandesgericht. Appeals of legal issues are heard in the Bundesgerichtshof (federal supreme court). Only 5% of cases are appealed to the Bundesgerichtshof.
While there are some similarities, the German medical malpractice litigation system differs most notably from the U.S.’s system in its use of specialized judges and court-appointed experts and the absence of juries. In addition, patients’ options following a suspected medical error, which include support from their health insurer, encourage early resolution of medical malpractice disputes.
Stay-tuned more research findings and discussions about Germany’s medical malpractice resolution processes.